Tag Archives: Supreme Court of the United States

SCOTUS Allows Travel Ban

It’s moot now, but important to reestablish the point.

WASHINGTON (AP) — The Supreme Court on Monday allowed the Trump administration to fully enforce a ban on travel to the United States by residents of six mostly Muslim countries.

This is not a final ruling on the travel ban: Challenges to the policy are winding through the federal courts, and the justices themselves ultimately are expected to rule on its legality.

But the action indicates that the high court might eventually approve the latest version of the ban, announced by President Donald Trump in September. Lower courts have continued to find problems with the policy.

SCOTUS protects free speech

My column for the Washington County Daily News is online. Here you go:

With the rush of news lately about Obamacare, Brexit, Trump and everything else happening in our world, one can be forgiven for missing that the Supreme Court of the United States rendered what may prove to be one of its most important decisions protecting the free speech rights of Americans. The background of the case stretches back into decades of American progressive culture.

For decades, many American liberals who preach fidelity to the 1st Amendment and free speech have been carving out more and more speech as unworthy of such protection. In the past, the answer to offensive speech was more speech. Americans were certainly free to say nasty things and express abhorrent thoughts, and other Americans would respond with contrary speech. Such debate is an underpinning of a free society.

Liberals in America have been slowly eroding that robust intellectual ethos by decreeing that some speech is so offensive that the speaker must not be allowed to say it or face severe penalties if they do. This anti-free speech attitude has manifested in our American culture in the form of safe spaces, trigger words, speech codes and the like. On many college campuses and other liberal institutions, the price for saying something that does not please the ruling regime — from Marquette University to ESPN — is ostracism, reprimand, and expulsion.

It was in this intolerant culture that Barack Obama and many his fellow travelers were incubated and they brought it with them when Obama became our president. It was just that sort of intolerance that seeped into the United States Patent and Trademark Office (USPTO).

The USPTO has a very simple purpose. It to register the unique intellectual property of individual Americans. The USPTO is not responsible for enforcing trademarks or copyrights. It is merely an office that evaluates a trademark or invention to determine if it is unique, and if it is, to register it in an official government record. If a person has a trademark or copyright that they think is being violated, then that person must file a civil suit in federal or state court to have the court enforce it.

Under the Obama Administration, the USPTO tried to stretch its mission to not just register unique trademarks,but to enforce a liberal speech code on them and prohibit trademarks that they did not like. Under the auspices of a “disparagement clause,” the USPTO had taken to denying trademarks that would normally qualify, but were deemed “offensive” to some real or mythical constituency.

Such were the rubrics that a band called “The Slants” confronted when trying to register the name of their band. The USPTO denied their application for a trademark because the word “slant” is considered a derogatory term for Asians. The Slants are a group of Asian-Americans who are determined to reclaim anti-Asian stereotypes, so they filed suit against the USPTO to have their name protected. The end result was the Supreme Court ruling of last week in the case of Matal v. Tam.

In a unanimous 8-0 decision, the Supreme Court utterly repudiated the USPTOs position. In a clear, uncompromising ruling supported by the entire spectrum of judicial philosophies on the court, Justice Alito said that “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” Indeed. There was a time when all Americans believed that.

The Supreme Court’s ruling has drawn a line across which government entities may not cross. This has implications across our nation in government offices, public universities, and every other area where our government has been firmly pushing the 1st Amendment into a small, controlled, “safe space.” Moving forward, every effort by public institutions to restrict and control speech must be measured against this ruling. Many of them will find themselves failing to meet its standard and Americans must hold them to account.

SCOTUS Allows Part of Travel Ban to Go Into Effect

Boy… there’s a lot of SCOTUS news happening at the moment. Now there’s this:

The justices granted parts of his administration’s emergency request to put the March 6 executive order into effect immediately while the legal battle continues.

The court said that the travel ban is in effect “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.”

The court also said it would allow a 120-day ban on all refugees entering the United States to go into effect on the same grounds.

Three of the court’s conservatives said they would have granted Trump’s request in full, including Trump appointee Neil Gorsuch.

While I think it is important that this issue be resolved by the courts to reaffirm the President’s authority in these matters, I am left wondering why the ban is still necessary. Remember that this was supposed to be a temporary ban while the administration firmed up its vetting procedures for foreigners traveling to the U.S. Those new vetting procedures should be in place now, thus rendering the temporary travel ban moot. If those procedures aren’t ready and in place, why not? That was, after all, the long-term goal.

Kennedy to Retire?

We seem to get this scuttlebutt every year. With Trump in the White House, the media establishment is in full panic over even the whiff of another SCOTUS retirement. Trump’s past pick was solid, so I’m hopeful that the rumors are true.

(CNN)The final week of the Supreme Court session opens Monday, and with it comes rampant speculation that Justice Anthony Kennedy may call it quits.

If Kennedy does announce his retirement, it would almost certainly ensure not only a clear rightward swing in the Court but would also cement a major part of Donald Trump’s legacy barely five months into his first term.

The power and politics of the court

My column for the West Bend Daily News is online. Here you go:

Almost exactly a year ago, the Conservative Lion of the Supreme Court of the United States, Antonin Scalia, passed away. His death triggered a titanic political battle that is only now beginning its final phase.

The fact that the battle over a single appointment to the Supreme Court is so important and so heated is distressing because it is the result of two concentrations of power that should be abhorrent to small “r” republicans. The first concentration is into the federal government in distant Washington. Over the past two centuries we have allowed our federal government to grow so large and powerful that it wields an extraordinary amount of authority over our lives.

The second concentration is into the Supreme Court itself. While intended to be a coequal branch of government on equal footing with the Legislative and Executive branches, the Supreme Court, headed by Chief Justice John Marshall, quickly assumed the power to be the final arbiter of the constitutionality of laws in its 1903 decision, Marbury v. Madison.

The combination of the Supreme Court being the final arbiter of the constitutionality of laws for government with massive power and control over Americans’ lives necessarily makes the decisions of the court, and the people who make those decisions, of vital importance to all Americans. And the fact that Justices for the Supreme Court serve for life renders the decision regarding each selection of generational impact.

When Justice Scalia passed away, he left a Supreme Court with a slight ideological tilt to the Left after years of it having a slight tilt to the Right. President Obama had hoped to appoint another leftist Justice to the bench, thus cementing a leftist majority on the court for years to come. The Republicans who controlled the Senate exercised their authority to thwart the President and leave the choice to the next president. When the Senate took that action, the outcome of the Presidential election was months in the future and polls predicted a strong victory for Hillary Clinton. As we know, Donald Trump won the election against all odds and has now chosen his nominee to succeed Justice Scalia.

Despite fears from Conservatives and constructionists, President Trump made a choice that is exemplary in every regard. Neil Gorsuch is widely acknowledged as brilliant, eloquent, and well-liked by colleagues from all sides. He was unanimously confirmed to serve on the 10th Circuit Court of Appeals just eleven years ago. He has an impeccable resume including degrees from Columbia, Oxford, and Harvard, where he was a classmate of President Obama. Gorsuch was a clerk for two Supreme Court Justices, and has served with distinction for a decade in the Court of Appeals. It is also worth noting that Gorsuch, at 49-years-old, is young He has the potential to serve for a generation.

Most importantly, Gorsuch’s rulings indicate that he is a highly-principled judicial conservative, but one who is more constructionist of even the indomitable Scalia. Gorsuch is steeped in Natural Law and vehement in his protection of the individual from the overreaches of government. This might put him at odds with some conservatives in issues regarding the 4th Amendment, and with liberals regarding the 1st Amendment. But he clearly states in view in his 2006 book, The Future of Assisted Suicide and Euthanasia, “…the whole purpose pose and ideal of government as envisioned by the founding document of our country, is to establish a government that is aimed at securing and protecting what our founders considered to be self-evident human rights and truths.”

The Democrats have already reflexively announced their opposition to Gorsuch, even though their criticisms have failed to rise to any cogent standard. Wisconsin’s own Senator Tammy Baldwin has even refused to meet with Gorsuch, thus abdicating her role in the process and retreating behind nasty press releases and daft commentary.

Far be it from me to advise the Democrats, but their overreach on Gorsuch may neuter them further on future picks. Remember that former Senate Majority Leader Harry Reid killed the filibuster rule for all but Supreme Court picks in his effort to ram through President Obama’s lower court appointments, but left it in place for Supreme Court appointments. In doing so, Reid laid the ideological groundwork and precedent for killing the filibuster rule for Supreme Court picks too.

If the Democrats in the U.S. Senate choose to filibuster and obstruct what is clearly a brilliantly qualified choice for the Supreme Court, the Republicans can rescind the filibuster rule for Supreme Court picks too and confirm the appointment without needing to make a single concession to the minority party. The Democrats’ intransigence and unwillingness to even participate in the process, and the precedent already established by Harry Reid, will provide ample political cover for the change in rules.

Then, if and when Trump gets another opportunity to appoint a Supreme Court justice, the rules will already be set to allow an easy confirmation. If the Democrats participate and allow a vote – even if all of them vote against the nominee – they will likely preserve the filibuster for future Supreme Court nominations while undercutting the political justification to rescind it next time.

If the political battles of the past few years in Wisconsin have taught me anything, it is that Democrats will overreach. Their base of radicals demands unbending fealty to ideology – even at the expense of victory.

Neil Gorsuch is eminently qualified to sit on the Supreme Court and should be confirmed with broad support in the Senate. Then we should begin the process of reducing the scope and power of the federal government and the court so that these nominations wane in importance.

Democrats Oppose Trump SCOTUS Pick

As sure as the sun will rise in the east

Leading Democrats have come out in staunch opposition to Donald Trump’s nomination of Neil Gorsuch for the vacant position on the Supreme Court.

President Trump named the Colorado appeals court judge on Tuesday to replace the late Antonin Scalia.

Senate Democratic leader Chuck Schumer said he had “very serious doubts” about Judge Gorsuch’s nomination.

Massachusetts Senator Elizabeth Warren accused the nominee of siding with large companies over American workers.

Two of Judge Gorsuch’s most high-profile appeals court rulings saw him side with business owners who objected on religious grounds to funding birth control via staff insurance plans.

All of their points of opposition lose all meaning when they told us before Trump made a selection that they would oppose the pick. They are not opposing the specific candidate. They are opposing Trump because they see it as their role to oppose anything Trump does. So we’ll go through the dance, but the result is already known.

Neil Gorsuch

Our next Supreme Court Justice. Excellent choice. Kudos, President Trump.

Gorsuch has the typical pedigree of a high court justice. He graduated from Columbia, Harvard and Oxford, clerked for two Supreme Court justices and did a stint at the Department of Justice.

He attended Harvard Law with former President Barack Obama. On Tuesday, Obama’s former ethics czar, Norm Eisen, another classmate, tweeted: “Hearing rumors Trump’s likely Supreme Court pick is Neil Gorsuch, my (and President Obama’s!) 1991 Harvard Law classmate.If so, a great guy!”

Since 2006, he has served on the 10th Circuit Court of Appeals, in Colorado. His supporters note that he is an outdoorsman who fishes, hunts and skis. On the court, conservatives hope he could become the intellectual heir to Scalia, long the outspoken leader of the conservative bloc.

“The real appeal of Gorsuch nomination is he’s likely to be the most effective conservative nominee in terms of winning over Anthony Kennedy and forging conservative decisions on the court,” said Jeffrey Rosen of the National Constitution Center. “He’s unusual for his memorable writing style, the depth of his reading and his willingness to rethink constitutional principles from the ground up. Like Justice Scalia, he sometimes reaches results that favor liberals when he thinks the history or text of the Constitution or the law require it, especially in areas like criminal law or the rights of religious minorities, but unlike Scalia he’s less willing to defer to regulations and might be more willing to second-guess Trump’s regulatory decision.”

Let the confirmation battle be joined.

Trump Narrows SCOTUS List to Three

I hate, hate, hate, that before the AP tells us anything about these three candidates they feel the need to tell us that they are white men – as if that is supposed to be a negative thing. I’m much more concerned about the content of their character than the color of their skin or the genitalia under their skivvies.

WASHINGTON (AP) — President Donald Trump has narrowed his choice to fill the Supreme Court vacancy to three judges and said he expects to make his decision in the coming days.

A person familiar with the selection process said the three judges, all white men who sit on federal appeals courts, were on the list of 21 potential high court picks Trump announced during the presidential campaign.

The leading contenders — who all have met with Trump — are William Pryor, Neil Gorsuch and Thomas Hardiman, the person said, speaking anonymously because he was not authorized to speak publicly about internal decisions.

Schumer Obstructs

Remember when obstructionism was considered bad?

Senate Minority Leader Chuck Schumer, D-N.Y., said Sunday he will absolutely block President Trump‘s pick for the vacant Supreme Court seat if the nominee is not “mainstream” enough.

“If the nominee is not bipartisan and mainstream, we absolutely will keep the seat open,” Schumer told CNN’s Jake Tapper.

The New York Democrat, who was booed during a speech at Trump’s inauguration, had previously criticized his Republican colleagues for blocking former President Obama‘s nominee, Merrick Garland, last year.

Trump has said he plans to announce his pick to succeed the late Justice Antonin Scalia in the next two weeks. He released a short list of potential nominees last summer, one of whom he met with shortly before entering office.

This is one of the areas where Trump does have a mandate. He was very clear about his potential Supreme Court picks during the campaign and it was heavily reported. He even published a list. As long as his nominee comes off of that list, he or she should be confirmed.

Of course, none of that matters to Schumer.

SCOTUS Rejects Doe Appeal

Finally. Now let the prosecutions of the prosecutors begin for their egregious abuse of power.

Madison — The John Doe investigation of Wisconsin Gov. Scott Walker’s campaign is over.

In a terse order, the U.S. Supreme Court on Monday rejected a request by Milwaukee County District Attorney John Chisholm to take up litigation that stopped the probe last year. That ends the long-stalled investigation.

The order was issued less than three weeks after documents were leaked that showed the extent to which the Republican governor and his aides worked closely with a supposedly independent group on recall elections. The documents included details about large donations from those who benefitted from laws approved by Walker and GOP lawmakers.

Chisholm, a Democrat, launched the probe in 2012 based on information turned up in an earlier investigation of Walker aides and associates that resulted in six convictions, ranging from misconduct in office for campaigning on county time to stealing from a veterans fund. Walker was not charged in that investigation.

Supreme Court Overturns Texas Abortion Laws

This means that Wisconsin’s law, which is substantially similar, is struck down too.

By Lawrence Hurley

WASHINGTON (Reuters) – The U.S. Supreme Court on Monday struck down a Texas abortion law imposing strict regulations on doctors and facilities in the strongest endorsement of abortion rights in America in more than two decades.

The 5-3 ruling held that the Republican-backed 2013 Texas law placed an undue burden on women exercising their right under the U.S. Constitution to end a pregnancy, established in the court’s landmark 1973 Roe v. Wade decision.

SCOTUS Rules In Favor of Police in Unconstitutional Stop

I find myself agreeing with the dissent.

While the court held that the initial stop was unconstitutional, due to lack of reasonable suspicion, Justice Clarence Thomas wrote for the majority that overturned the Utah Supreme Court and held that because the arrest warrant was valid, the evidence was admissible.

Thomas portrayed the incident as the result of a couple “at most negligent” mistakes on the part of the officer, and downplayed its broader significance.

“There is no indication that this unlawful stop was part of any systemic or recurrent police misconduct,” he wrote. “To the contrary, all the evidence suggests that the stop was an isolated instance of negligence that occurred in connection with a bona fide investigation of a suspected drug house.”

But Sotomayor said the case was anything but minor.

“Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants — even if you are doing nothing wrong,” she wrote.

SCOTUS Rules In Favor of Property Rights

Unanimous.

The Supreme Court on Tuesday ruled against the Obama administration in a case regarding water pollution permits.

The nation’s highest court ruled unanimously that a landowner can appeal through the federal court system a determination from the Army Corps of Engineers that a water body is subject to federal jurisdiction and permit requirements under the Clean Water Act.

The court’s eight justices agreed in Army Corps of Engineers v. Hawkes Co. Inc. that the Corps’s final “jurisdictional determination” regarding a peat mining company’s wetlands is a “final agency action,” so the company can challenge it like any regulation.

The case is likely to have consequences for the federal government’s entire enforcement of the Clean Water Act, the main law regarding pollution control.

Trump Lists Possible SCOTUS Nominees

This about sums up my reaction.

But let’s be clear, this is a campaign announcement designed to assuage conservatives. It’s a political document, in essence. There’s no reason to believe that Trump would feel bound by this list.

Obama’s Supreme Court Pick

Eh… he’s a fairly ordinary leftist jurist – especially on things like the 2nd Amendment – who hangs out with the Senators at DC cocktail parties. Obama is 75% sure that the Republicans in the Senate are going to stick to their guns (as they should) and not confirm him, but in the event that they do, this allows Obama to also pick a new justice for the DC Circuit Court. Remember that the DC Circuit Court is arguably the second most important federal court since it decides on so many cases regarding the federal government.

WASHINGTON — President Obama on Wednesday nominated Merrick B. Garland to be the nation’s 113th Supreme Court justice, choosing a centrist appellate judge who could reshape the court for a generation and become the face of a bitter election-year confirmation struggle.

In selecting Judge Garland, 63, a well-known figure in Washington legal circles who has drawn praise from members of both parties, Mr. Obama dared Republican senators to ignore public pressure and make good on their promise to block consideration of any high court nominee until after the next president is chosen.

Another Candidate Withdraws From Consideration

Nobody credible wants this appointment.

Washington (CNN)Adalberto Jordan, a federal judge in Miami seen as a top contender for the Supreme Court vacancy, has withdrawn his name from contention, a lawmaker told CNN on Wednesday.

 

Justice Scalia Dead

Wow. This is huge. RIP for one of America’s greatest justices.

Associate Justice Antonin Scalia was found dead of apparent natural causes Saturday on a luxury resort in West Texas, federal officials said.

Scalia, 79, was a guest at the Cibolo Creek Ranch, a resort in the Big Bend region south of Marfa.

The rise and fall of the Supreme Court

My column for the West Bend Daily News is online. Here it is:

The Supreme Court issued a series of bad rulings last week that indicate this court has lurched from being an austere arbiter of the law to a highly partisan legislative body. Unfortunately for the American people, it is a legislative body that consists of members appointed for life and not accountable to the people. In no case did the Supreme Court belittle itself more than in the case of King v. Burwell — the case about the Obamacare subsidies.


This was a case that was about the plain reading of the English language. The Obamacare law gave each state the ability to create a health care exchange, but if a state chose not to do so, the federal government would create one. The Obamacare law also clearly states in several places that the federal government would provide a means-tested subsidy for participants in the state Obamacare exchanges, but only for participants in the state exchanges. The law specifically excludes giving a subsidy to participants in the federal exchange.

The purpose for the law’s language on subsidies was obvious and clearly stated by advocates of the law in the press and in official Congressional debates. The advocates of Obamacare wanted the states to create the Obamacare exchanges so that the states, and not the federal government, would bear the brunt of the cost of Obamacare. In this way, Obamacare could be sold to the public without having to disclose its actual, and enormous, cost to the taxpayers. The subsidies were used as a political cudgel to incent the states to create Obamacare exchanges under the calculation that no state would dare to turn down “free” subsidies to their citizens.

The law did not play out the way the Obamacare advocates planned. Many states, including Wisconsin, wisely saw through the game they were playing and refused to create a state exchange. This left President Barack Obama a political disaster with the prospect of millions of Americans being forced into the federal Obamacare exchange without a subsidy. So, Obama and team did what they have always done: They ignored their own law and issued subsidies to participants in the federal exchange anyway.

This is what King v. Burwell was about. Does Obamacare say what it actually says — that the subsidies only apply to participants in the state exchanges and not those in the federal exchange? The Supreme Court ignored the plain language of the law, the context in which it was written and the purposeful intent for why it was written. Instead, the court ruled that the law means whatever Obama and team want it to mean. The Supreme Court has officially sanctioned arbitrary rule.

Chief Justice John Roberts admits as much in the majority opinion. He writes, “If the statutory language is plain, we must enforce it according to its terms. But oftentimes the meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.” Brown & Williamson, 529 U.S., at 132. So when deciding whether the language is plain, we must read the words “in their context and with a view to their place in the overall statutory scheme.”

In other words, it does not matter to Roberts what the actual words mean. He and his fellow legislators in black robes will give the words whatever definitions they choose irrespective of the clear meaning of words in the English language.

As usually happens, Justice Antonin Scalia perfectly eviscerates the majority’s bad decision in his dissent. He says, “… the cases will publish forever the discouraging truth that the Supreme Court of the United States favors some laws over others, and is prepared to do whatever it takes to uphold and assist its favorites. I dissent.”

As do I.

Owen Robinson is a West Bend resident. Reach him at

SCOTUS Blocks Voter ID in Wisconsin

Argh.

MADISON — The U.S. Supreme Court on Thursday blocked Wisconsin from implementing a law requiring voters to present photo IDs, overturning a lower court decision that would have put the law in place for the November election.

The 7th U.S. Circuit Court of Appeals declared the law constitutional on Monday. The American Civil Liberties Union followed that up the next day with an emergency request to the Supreme Court asking it to block the ruling.

On Thursday night the U.S. Supreme Court did so, issuing a one-page order that vacated the appeals court ruling pending further proceedings. Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented, saying the application should have been denied because there was no indication that the 7th Circuit had demonstrably erred.

Here’s the text of the order:

The application to vacate the September 12, 2014 order of the United States Court of Appeals for the SeventhCircuit presented to Justice Kagan and by her referred to the Court is granted and the Seventh Circuit’s stay of the district court’s permanent injunction is vacated pending the timely filing and disposition of a petition for a writ of certiorari respecting case Nos. 14-2058 & 14-2059. Should the petition for a writ of certiorari be denied, this order shall terminate automatically. In the event the petition for a writ of certiorari is granted, the order shall terminate upon the sending down of the judgment of this Court
JUSTICE ALITO, with whom JUSTICE SCALIA and JUSTICE THOMAS join, dissenting.
There is a colorable basis for the Court’s decision due to the proximity of the upcoming general election. It is particularly troubling that absentee ballots have been sent out without any notation that proof of photo identification must be submitted. But this Court “may not vacate a stay entered by a court of appeals unless that court clearly and‘demonstrably’ erred in its application of ‘accepted standards.’” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U. S. ___, ___ (2013) (slip op., at 1) (SCALIA, J., concurring in denial of application tovacate stay) (quoting Western Airlines, Inc. v. Teamsters, 480 U. S. 1301, 1305 (1987) (O’Connor, J., in chambers);some internal quotation marks omitted). Under that test, the application in this case should be denied

As I understand this, SCOTUS blocked the implementation of Voter ID pending a decision on whether they will take the case or not. If they decide not to take the case, the law will immediately go into effect. Their concern is that the implementation of the law this close to an election may be problematic for those to whom absentee ballots were already sent. There is no indication as to whether or not the court will accept the case.

Voter ID will eventually be implemented in Wisconsin, but not for this election.